Cite as: 526 U. S. 227 (1999)
Kennedy, J., dissenting
Before it departs on its troubling constitutional discussion, the Court analyzes the text of § 2119. This portion of the Court's opinion, it should be acknowledged, is careful and comprehensive. In my submission, however, the analysis suggests the presence of more interpretative ambiguity than in fact exists and reaches the wrong result. Like the Court, I begin with the textual question.
I
Criminal laws proscribe certain conduct and specify punishment for transgressions. A person commits a crime when his or her conduct violates the essential parts of the defined offense, which we refer to as its elements. As a general rule, each element of a charged crime must be set forth in an indictment, Hamling v. United States, 418 U. S. 87, 117 (1974), and established by the government by proof beyond a reasonable doubt, In re Winship, 397 U. S. 358, 364 (1970), as determined by a jury, assuming the jury right is invoked, Sullivan v. Louisiana, 508 U. S. 275, 277-278 (1993); Almendarez-Torres v. United States, 523 U. S., at 239. The same rigorous requirements do not apply with respect to "factors relevant only to the sentencing of an offender found guilty of the charged crime." Id., at 228; see also McMillan v. Pennsylvania, 477 U. S. 79, 93 (1986). "[T]he question of which factors are which is normally a matter for Congress." Almendarez-Torres v. United States, 523 U. S., at 228.
In determining whether clauses (1)-(3) of § 2119 set forth sentencing factors or define distinct criminal offenses, our task is to "look to the statute before us and ask what Congress intended." Ibid. The statute is as follows:
"Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—
255
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